"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Wednesday, April 01, 2015

Mayor Barrett, Indiana followed Wisconsin's example

In yesterday's Milwaukee Journal Sentinel, Mayor Tom Barrett criticized Indiana's new religious freedom law, claiming that it sides with religious extremists and imposes a particular religion on the rest of us. He says that Indiana's law is a bad example and Wisconsin should not follow it.

Too late, Mr. Mayor. As I wrote on Right Wisconsin yesterday, Wisconsin's constitution has been interpreted to provide the same protection to religious freedom as the law just passed by Indiana. In Wisconsin, just as in Indiana, the state may not enact laws which substantially burden a person's religious freedom unless it can show that imposing this burden is necessary to achieve a compelling state interest. (A map showing which states provide this protection can be found here. It looks like 27 states provide this form of "extremist" and "inhospitable" protection for religious dissenters. Only five clearly do not.)

It turns out that the Mayor needn't worry about Wisconsin following Indiana's example. It was Indiana that followed ours.

There are a few other things that might surprise the Mayor. First, the 1996 state supreme court decision that adopted this "extreme" protection for religious freedom was unanimous. It was written by former Justice Janine Geske and joined by Chief Justice Shirley Abrahamson and Ann Walsh Bradley. You can't blame "the conservatives" for this one.

Second, it jumps the gun to say, as the Mayor does, that Indiana's law (or Wisconsin's constitution) means that a baker or florist can refuse to provide goods or service to a same-sex wedding. A court would have to decide whether, in the particular circumstances, the state has a compelling interest in applying its anti-discrimination law to a religious objector. The answer to that question may vary from business to business. For example, the claim of a large business providing goods or services unrelated to marriage or sexuality (think Chik-fil-a or WalMart) may be outweighed by the state's interest in making certain public accommodations available to all. The claim of a wedding photographer who does not wish to involve herself in a ceremony that she feels endangers the immortal souls of all involved may not be.

The one thing that we can say based on experience with states who provide heightened protection for religious freedom is that such claims are rarely made.

I am aware that some people have tried to argue that Indiana's law is somehow different from the similar protection provided to religious freedom by the federal government and twenty-x states. The arguments fail. As the Supreme Court recognized with respect to federal law in last term's Hobby Lobby decision, a religious objector - or group of objectors - engaged in a for profit or business or operating in the corporate form do not forfeit their religious liberty.

Nor is it surprising that the protection of religious liberty might apply to private parties seeking to enforce a government law. Indeed, that's precisely how protections of constitutional or statutory liberty normally work. Imagine, for example, that Wisconsin passed a law permitting "wrongful death" actions by private parties (say the father of the aborted child) against women who exercise their constitutional freedom to choose an abortion. Under commonly accepted doctrine, a woman facing such a suit would be able to present a constitutional defense,

Of course, even though he did not do his homework, it is open to Mayor Barrett or anyone else to argue that Wisconsin, as well as Indiana, has got it wrong - that religious dissenters - even Mom and Pop bakers and florists - should be forced to act contrary to their religious conscience and that no special regard for their religious liberty claim ought to be part of the law.

But before you conclude this is so, read this column by New York Times columnist Ross Douthat. The answer is not a simple matter of respecting "rights" or prohibiting discrimination. (There are rights and discrimination claims on both sides of the question.) The question is not answered by whether or not you agree with religious objections to homosexuality or same-sex marriage. (While I have opposed legal recognition of same-sex marriage on secular grounds, I do not have religious or moral objections to either.) Majority religious beliefs are unlikely to be subject to legal burden, so protections of religious liberty are always going to apply to beliefs that the majority does not share. It can't be resolved by facile comparisons to race. Race is unique in American history.

You have to ask yourself whether the idea of freedom in our country is large enough to permit dissent on the question of human sexuality. Is it really necessary to extirpate all remnants of traditional religious viewpoints? Slogans and catch phrases won't accomplish the heavy lifting required to answer those questions.

4 comments:

That is generally not part of the analysis. Absent some obvious proof to the contrary, sincerity is assumed. There is a "rule" against courts making religious judgements. (I put it in quotation marks because completely avoiding such judgments is probably impossible.) Some people argue - Justics Scalia is one of them - that this opens the door to too many religious claims because what someone can claim as religion is limited only by the human imagination. However, that simply hasn't happened where this type of protection is extended.

RFRA says beliefs need be both sincere and religious in nature, right?

RFRA claims to smoke dope, keep eagle feathers, and import bush meat have been rejected because of the courts deemed the claims insincere.

The court can't examine those assertions? They're not going to examine any facts that might show my beliefs are not sincerely held, or that I don't adhere to them consistently? They're not going to question whether my beliefs are fanciful? If I say I'm a Pastafarian, they're not going to ridicule that? If I say my God died and came back to life three days later, or that when I die I get my own planet, they're not going to make a peep, right?

The IRS has a 14-point system for determining whether an organization is a church, and these points favor established religions over tiny ones.

Certainly the Supreme Court has developed "sincere and meaningful belief" tests when it came to conscientious objectors, and the same questions were examined by local draft boards and the courts above them, and the exemption wasn't given for merely personally believing that you were opposed to war.

All these RFRA are all about giving special exemptions because of claimed adherence to established religions.

You're confusing different things. It is certainly possible to show that an objector does not actually hold the belief that they do. But, again, I think that the evidence is going to have to be strong and objective. I would argue that the government has the burden of proof on insincerity although I don't think that's been resolved.

The cases that you mentioned involved people who were profiting from the posited religious belief. While I wouldn't say there's a rule against it, in the context of those cases, the court was able to conclude that the defendants didn't really believe what they claimed to believe as demonstrated by their conduct and by objective criteria.

What the courts won't do - or at least shouldn't - is "ridicule" a belief or say its fanciful. So, no, they won't- or shouldn't - make a peep if they believe that your religious views are wrong.

I think you have the business about protecting "established" religions exactly backwards. RFRA or constitutional protection is not needed to protect politically powerful religious views. Governments won't interfere with them. It is needed to protect minority views.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.